← The hardest concepts in Indian law
In one breath
Article 32 lets a person go straight to the Supreme Court to enforce a fundamental right, and Article 226 lets a High Court issue writs for fundamental rights and for any other legal right. The five writs are habeas corpus, mandamus, prohibition, certiorari and quo warranto, and each has its own use.
The picture
The toolbox on the wall
A handyman’s wall has five tools hung on pegs, each shaped for one job. A person who needs a nail driven does not ask for a saw, and the handyman may refuse a job that a neighbour can do more simply. The wall is in two rooms, one large and one small. The large room, the High Court, will take almost any job. The small room, the Supreme Court, takes jobs for protecting basic rights.
Habeas corpus asks the State to produce a person it holds and justify the detention. Mandamus orders a public authority to perform a public duty. Prohibition stops a lower body that is about to exceed its jurisdiction, and certiorari quashes a decision that has already exceeded it or has an error of law plain on its face. Quo warranto asks by what authority a person holds a public office. Article 32 is itself a fundamental right, and Article 226 is wider, since it covers any other purpose.
Where the picture stops working
A tool is used or not, whereas a writ is discretionary, and the High Court may refuse it where an effective alternative remedy exists, as with a statutory appeal. The toolbox also suggests that the tools are used against the State alone, though writs can run against bodies performing public functions. Finally, the tools are not separate in practice, and a petition often asks for several together.
How it really works
- 1Identify the right or duty said to be breached and the body responsible. Writs run against the State, its authorities and bodies doing public work.
- 2Choose the forum: the Supreme Court under Article 32 for a fundamental right, or a High Court under Article 226 for a fundamental or other legal right.
- 3Choose the writ that fits: habeas corpus for detention, mandamus for a duty, prohibition or certiorari for a body acting beyond its powers, quo warranto for an office.
- 4Check the discretionary bars, such as an alternative remedy, delay, and whether disputed facts need a trial.
- 5If the court is satisfied, it issues the writ and any consequential direction, and its supervision does not replace the body’s own decision on the merits.
Why people get it wrong
- Using certiorari as an appeal. The court corrects jurisdictional errors and errors of law apparent on the face of the record, not every wrong finding of fact.
- Forgetting that the High Court’s power under Article 226 reaches beyond fundamental rights, while Article 32 is confined to them.
- Treating the writs as automatic. Courts decline them where there is an effective alternative remedy or the facts are hotly disputed.
- Thinking only government departments can be sued. A private body may be reached when it performs a public function.
A worked example
The facts are invented
A tribunal cancels Vikram’s trading licence after a hearing in which it refused to look at the documents that he produced, and it decides on a law that does not apply to his business. The statute gives no appeal.
Vikram goes to the High Court under Article 226 and asks for certiorari. Because the tribunal acted outside its power, an error of jurisdiction, and no appeal exists, the court can quash the order. It cannot rewrite the facts. If Vikram’s complaint was only that the tribunal weighed the evidence badly, the court would decline to interfere, and if the statute gave an appeal he would be sent to it.
Try it
A person is held by the police for several days with no charge and no production before a magistrate. Which writ is the natural remedy?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Hari Vishnu Kamath v Ahmad Ishaque, AIR 1955 SC 233
- Syed Yakoob v K S Radhakrishnan, AIR 1964 SC 477
- Andi Mukta Sadguru v V R Rudani, (1989) 2 SCC 691
- L Chandra Kumar v Union of India, (1997) 3 SCC 261
Where to go next
More hard concepts in India law
- Public interest litigation and standing (Constitutional law)
- Natural justice and legitimate expectation (Administrative law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.